St. Lawrence County Administrator calls failure to apply for $500,000 grant an oversight, DA cries foul

Tuesday, July 8, 2014 - 2:37 pm

By JIMMY LAWTON

CANTON – Disputing statements from the St. Lawrence County administrator, District Attorney Mary Rain says the Probation Department was well aware of its responsibility to apply for a $500,000 grant to pay for two employees in her office.

Last week, Rain called for an investigation regarding the failure to apply for the grant, which provides funding for two victim advocate positions. Rain says the error was not something that fell through the cracks, but rather was ignored.

However, in a letter written to Rain, Karen St. Hilaire says the failure to apply for the grant was merely an oversight and was not a criminal matter.

“For as long as the grant was operative, it had always been the practice of the Probation Department and the District Attorney's office to work together to file the grant application,” wrote St. Hilaire.

“This practice arose at the inception of the first grant, with the Probation Department taking on this task to be of help to the District Attorney. I think it is clear that this year, having a new Director of the Probation Department and you having only recently taken over as District Attorney, contributed to the circumstances at hand. The grant application wasn't filed. In hindsight, one can see how this could happen, we do not believe that the failure to file for the grant comes anywhere near the level of nonfeasance contemplated in Section 190.05.”

In an interview St. Hilaire said both departments were aware of the grant. She said Rain’s department received five emails regarding the grant and the probation department received six. She said both departments failed to recognize it.

“Everybody missed it,” she said.

Rain disagrees. She says her office was diligent in contacting the probation department regarding the grant and that her department was assured via email that it would be applied for.

“The reasons provided thus far for the failure to apply for grants have been whole-heartedly untrue,” Rain said in an emailed response regarding the matter. “The two victim advocate positions are in the probation department budget line. Since August 2013, the DA’s office has continually requested updates regarding the filing of the grant application. Tim LePage and his assistants attended an audit of the grant in Nov 2013,”

Rain’s email continued, “When he says, ‘he didn’t know anything about the grant’ – that rings hollow. At that audit, the people from Albany reviewed the new grant application process with LePage and his assistants. They clearly knew! In an Aug. 2013 email, the probation assistant confirmed, when asked if she would be applying for the grant, she replied, “yes”! Hence the need for an investigation.”

Rain plans to convene a Grand Jury to conduct to an investigation into “misconduct, nonfeasance and neglect in public office.” Subpoenas were also issued to St. Hilaire and other county officials.

Emails sent June 18 between St. Hilaire and Rain indicate that Rain’s office was contacting the probation department regarding the grant. Rain said employees in her office “informed me that they had communicated with probation multiple times about the grant deadline.”

In her email, Rain said the grant application did not “slip through the cracks.”

“Based upon the information I've received I've been able to determine that this DID NOT slip through the cracks. Although my staff is not required to fill out the application, they were diligent on reminding probation, particularly Heather Boyce, that the application was due, inquired if they could be any assistance in its preparation and followed up on a weekly basis,” the email said.

In a response, St. Hilaire said that she believed what Rain wrote “was in a large part accurate.” She also acknowledged that conversations between the two departments did occur.

However, in a letter from St. Hilaire to Rain dated July 7, St. Hilaire referred to the situation as an understandable mistake.

“It seems very clear that what has happened in this particular case is an understandable mistake involving among others a new Probation Director and new District Attorney and any investigation would require an examination of both departments,” Hilaire said in her letter.

In her email, St. Hilaire also says the county will reach out to state officials to find funding that could replace the $500,000 grant.

In an interview St. Hilaire said she is requesting a special prosecutor.

“I believe that someone who has no involvement in this needs to determine if there is a need for this investigation,” she said.

Despite the letter from St. Hilaire, Rain said that she intends to move forward with the investigation.

“A request to the comptroller’s office has been made for an independent audit of the accounts,” she said.

The text from letters exchanged between Rain and St. Hilaire follow:

• Letter from District Attorney Mary Rain to County Administrator St. Hilaire.

Dear Ms. St. Hilaire:

My office is concerned with two recently discovered offenses in the county involving hundreds of thousands of the county's dollars. Be advised this letter is to prospectively place you and the office of the St. Lawrence County Treasurer's Department on notice that NO FUNDS may be disbursed from my federal or state asset forfeiture accounts or my Aid to Prosecution grant account without my express written authorization. This includes, but is not limited to, any funds, which were approved by the prior administration and are currently encumbered for distribution.

Let me stress in the strongest possible terms, the distribution of these funds without my authorization may constitute a violation of Federal and/or State Statutes. It is irrelevant what my predecessor may have already approved because, as I will explain below, it appears to violate the law.

On June 19, 2014 I received an e-mail from the Munis system indicating there was a pending invoice approval for the amount of$148.61. There was a description note of “DEA CONFERENCE EQUIPMENT INV" This was not a charge that I was familiar with and I asked my account clerk to investigate. See attached e-mail.

It was discovered that this money was coming out of a fund labeled DEA in my budget. The money in that fund comes from assets seized from criminals, which are eventually forfeited. The invoice for $148.61 was to pay for cables for the Board of Legislators microphone system. Such encumbrances were apparently approved by your office and the prior District Attorney, Ms. Duve, before she left office on December 31, 2013. When I reviewed how the forfeiture money was being used I refused to approve this distribution, as it constitutes a violation of the law. Federal and state law mandates that asset forfeiture money must be designated for the purpose of law enforcement and prosecution of crimes. Therefore, money used for any other purpose is a direct violation of such laws. Specifically, state law CPLR § 1349(2)(h)(ii) provides "moneys ... deposited to a prosecution services subaccount office general fund for the county to be used for the prosecution of penal law offenses."

Buying cable for the microphone system for the Board of Legislators in no way may be construed to assist in the prosecution of penal law offenses.

After investigating this $148.61 payment but before I could put a stop to it the payment was approved in the Munis system by Deputy Treasurer Robert Santamoor. I was unaware that other departments could make approvals out of my budget without consulting me first. By way of this letter I am informing the Treasurer's Office or any other office that has the ability to authorize approvals of bill payment that I must be consulted prior to making such approvals, without exception.

After finding the $148.61 payment, I requested that my Sr. Account Clerk look at other payments made from the asset forfeiture funds prior to January 1, 2014. What she found is disturbing. In an e-mail elated Dec. 16, 2013, Ass't Purchasing Agent Stephanie Kerr requested of Amy

Harvey the former Sr. Acct Clerk for this office, if there were still funds available from the "DEA fund" for purchases worth $12,000 for the "Board Room Control Unit for CCS 900 Ultro Conference System." See attached e-mail.

Ms. St. Hilaire, obviously a conversation between you and Ms. Duve took place wherein Ms. Duve approved $12,000 be taken from the District Attorney's "DEA Account." The attached requisition clearly demonstrates that the order was approved on December 19, 2013 by Ms. Duve for "Board Room Conference Equipment" order from "Gray bar" and was to be taken out of the

"Prosecutors Fund" - with a note on the requisition stating, "This purchase is 100% from forfeiture funds." The equipment was received on December 23,2013. Additionally, on the purchase order it indicates, "TELECOMMINICA TIONS/ SECURITY ... 100% DEA MONIES." The microphone system for the Board of Legislators can in no way be construed as "SECURITY" and can in no way be construed to be toward the prosecution of penal law offense.

Be advised, my office will continue to investigate, not only the above monies taken from the District Attorney's asset forfeiture accounts but all encumbrances made from state and federal asset forfeiture funds and grant monies. To that end I have been in contact with the New York State Comptroller Office for an investigation and audit.

The second offense that this letter addresses is the loss of over a half a million dollars of state grant money used to pay for two victim advocate positions. The county has applied for and received the grants to pay for the victim advocates' salaries for over 15 years. On June 27, 2014

I met with Dep. County Attorney Andrew Moses who is investigating the failure of the county to apply for the Office of Victim Services (OVS) grant. Although Mr. Moses may do a thorough job, a county employee and subordinate to those he's investigating cam10t be considered a genuine investigation by the public.

Also, it may be difficult for employees to be forthright knowing that their statements will be disclosed to their bosses.

Please be advised that the District Attorney's Office will be convening a Grand Jury to conduct an independent investigation. One of the functions of the Grand Jury is to investigate "misconduct, nonfeasance, and neglect in public office" and to determine whether such conduct is "criminal or othe1wise." See Criminal Procedure Law (CPL) §190.05. The failure to apply for over a half million dollars in grant money clearly falls within the Grand Jury's purview.

The Grand Jury is an independent and a secretive body allowing those who testify before it the opportunity to be much more candid with impunity. Be assured that the Grand Jury will investigate any and all acts of "misconduct, nonfeasance and neglect" of any county department head and/or elll.p1oyee. Preliminary review has uncovered additional acts constituting closer scrutiny under CPL §190.05 of other department heads and will be the target of thorough and vigorous investigations. We fully expect and anticipate your complete cooperation both with the

Office of the St. Lawrence County District Attorney's Office's investigator, its designee and all subpoenas by the Grand Jury.

Mary Rain

St. Lawrence County District Attorney

• Karen St. Hilaire’s Response to District Attorney Mary Rain

Dear District Attorney Rain:

Please let this letter serve as a response to yours of June 30,2014. I will first address your request that the County not disperse any funds from the federal or state asset forfeiture account or the aid to prosecution grant account. Although you label them as "my account," as you are well aware, these funds do not belong to any individual or department, but rather to the County. While the District Attorney is an independent elected official, like the Sheriff, County Treasurer Comptroller, and County Clerk, a department's budget is authorized and appropriated by the St. Lawrence County Board of Legislators. It is the County's responsibility to pay any and all outstanding obligations that are properly made and approved. I do not know of any federal or state law that prohibits the County from paying these bills, nor of any law that would permit the County to not pay them.

Next, based on your letter and quotes in local news stories, your reading of CPLR § 1349(2)(H)(i) appears misplaced. CPLR § 1349 does not govern how all forfeiture funds are spent, nor does it attempt to define specific appropriate uses.

New York Statutory law does not give an itemized list of items or projects for which these funds may be spent. Rather, the New York State Law Enforcement community tends to rely on the definition utilized by the federal government. The United States Department of Justice's A Guide to Equitable Sharing of Federally Forfeited Property for State and Local

Enforcement Agencies, April 2009, sets forth the following guidelines:

• Support of community-based programs (however, cash transfers to community-based programs are not permitted as the state and local level).

Impermissible uses include:

• Payment of existing salaries;

• Use of forfeited property by non-law enforcement personnel;

• Payment of education-related costs;

• Uses contrary to the law of the state or local jurisdiction;

• Non-official government use of shared assets;

• Purchase of food or beverage; and

• Extravagant expenditures.

Based on that very broad definition of Law Enforcement Purposes, the purchase of wiring and audio equipment to equip a room used regularly as a court room and occasionally as a grand jury room clearly is appropriate, accepted, and legal by both New York State and the federal government.

In your review of the equipment purchase, you make it clear that you are not interested in utilizing the room to conduct a grand jury or as part of your resources to prosecute crime in St. Lawrence County. While you are not obligated to use that room, your intent going forward is not relevant to the inquiry. Rather, your review of the expenditure should focus on whether it was your predecessor's judgment that the expenditure was proper. The practical application of the statute throughout the State gives the District Attorney wide latitude in choosing how to spend those funds. In the practical application of the statue the decision is committed to the sound discretion of the District Attorney. If her decision in this matter is reviewable at all, it would be by an Article 78 proceeding, the statute of limitations for which has run out.

When the District Attorney approves and authorizes the expenditure of forfeiture money, it would then be the responsibility of the County of St. Lawrence to pay the vendors in question for the equipment and work associated with installing it. It should also be noted that Attorney Duve' s predecessor also authorized a similar purchase of equipment for the room in question, which only goes to reinforce the propriety of the purchase.

Therefore, in light of New York State's lack of specificity and practical reliance on the discretion of the District Attorney, reliance on federal guidelines to define what constitutes a

"Law Enforcement Purpose," it is clear that District Attorney Duve's desire to utilize asset forfeiture money for the purpose in question, and the County's attempt to pay the vendor, is appropriate, permissible and fully legal.

Your letter also alleges that a County failure to apply for victim advocacy grant from the Office of Victim's Services, an aid to prosecution grant from the Division of Criminal Justice. Services, somehow rises to the level of criminal nonfeasance on behalf of some County employee.

While Section 190.05 of the Criminal Procedure Law of the State of New York ("CPL") permits a district attorney to investigate criminal nonfeasance, the nonfeasance spoken of in that section is where an individual fails to aid a party through beneficial intervention. The party being charged must be vested with a special relationship obligating him or her to act to protect an injured victim. See Minch v. California Highway Patrol, 140 Cal.App.4th 895 (3d Dist. 2006). The nonfeasance that Section 190.05 refers to is not a ministerial mistake, as clearly was the case with this year's aid to prosecution grant, but rather akin to a police officer or firefighter failing to act, and as result an individual being injured. The facts alleged in your letter, even if true, do not rise to those levels of criminality.

As for your specific allegations on this matter, in the past the Probation Director took the responsibility for filing for the grant with the Office of Victim Services, even though the Victim Service Coordinators hired under the grant were employees of the District Attorney and worked for the District Attorney. They had office space in the Probation Department for a while as an accommodation to the District Attorney's office.

For as long as the grant was operative, it had always been the practice of the Probation Department and the District Attorney's office to work together to file the grant application, This practice arose at the inception of the first grant, with the Probation Department taking on this task to be of help to the District Attorney. I think it is clear that this year, having a new Director of the Probation Department and you having only recently taken over as District Attorney, contributed to the circumstances at hand. The grant application wasn't filed. In hindsight, one can see how this could happen, we do not believe that the failure to file for the grant comes anywhere near the level of nonfeasance contemplated in Section 190.05.

Be advised, however, that it has never been the responsibility of the County

Administrator or Board of Legislators to file for, or negotiate, the Victim Services Grant aid to prosecution grant on behalf of the District Attorney' s office. Therefore, it would seem likely that if you were to convene a grand jury to timely investigate this matter in a fair and impartial manner for nonfeasance on the part of County officials, you would be required to request that the County court grant a Special Prosecutor, so that the grand jury could examine personnel from the District Attorney's office. See People v Gallagher 14 3 AD2d 929.

It seems very clear that what has happened in this particular case is an understandable mistake involving among others a new Probation Director and new District Attorney and any investigation would require an examination of both departments.